What Does “Discretion” Mean in an Adjustment of Status Case?

In my last two posts, I wrote about the new USCIS policy memorandum describing Adjustment of Status as a form of “extraordinary relief,” and then about the possible legal challenges to that policy.

This post focuses on the practical question underneath the entire issue:

What does discretion actually mean in an Adjustment of Status case?

That question matters because Adjustment of Status has always been discretionary in most family-based cases. The new concern is not that USCIS suddenly discovered discretion. The concern is that USCIS may now use discretion more aggressively to deny cases that, historically, would often have been approved.

Adjustment of Status Has Always Been Discretionary

For most family-based applicants, proving eligibility is only the first step.

A person must generally show that they were inspected and admitted or paroled, that they have a qualifying immigrant petition, that an immigrant visa is available, and that they are admissible to the United States.

Assuming that those requirements are met and it is determined that permanent residence CAN be granted, USCIS still asks a second question:

SHOULD this person be granted permanent residence?

That is the heart of the issue.

Discretion means USCIS weighs the positive and negative factors in the applicant’s life and immigration history. While receiving a green card is not automatic, the decisions also should not be arbitrary. USCIS’s own Policy Manual says discretionary decisions must be based on the totality of the circumstances. Officers are supposed to review the specific facts of the case, identify the positive and negative factors, and explain why one side outweighs the other. Essentially, it should not be

Eligibility Is Usually a Positive Factor

One important point in the USCIS Policy Manual is that eligibility itself is generally a positive factor.

In other words, if a person qualifies for Adjustment of Status and there are no meaningful negative factors, USCIS has traditionally exercised discretion favorably.

That is why the new policy is so significant.

The May 2026 memo appears to place much more weight on certain facts that are common in Adjustment of Status cases, including:

• overstaying a visa;
• working without authorization;
• failing to maintain lawful nonimmigrant status;
• remaining in the United States after a temporary admission;
• applying for Adjustment of Status when consular processing was technically available;
• and possible preconceived immigrant intent.

Some of these facts have always mattered. But historically, they did not automatically doom a family-based adjustment case, especially for immediate relatives of U.S. citizens.

The question now is whether USCIS will begin treating these facts as unusually serious negative factors.

The Totality of the Circumstances Still Matters

Even under the new policy, USCIS is still supposed to conduct an individualized analysis.

That means an applicant should not be reduced to one fact, such as an overstay or a prior period of unauthorized employment.

The officer should look at the full picture.

Positive factors may include:

• marriage to a U.S. citizen or lawful permanent resident;
• U.S. citizen children;
• caregiving responsibilities;
• hardship to family members if the case is denied;
• long residence in the United States;
• lawful entries and prior immigration compliance;
• payment of taxes;
• steady employment;
• education or professional training;
• community involvement;
• church, charitable, or volunteer work;
• lack of criminal history;
• rehabilitation, where applicable;
• and evidence of good moral character.

The practical lesson is simple: adjustment applicants should no longer assume that USCIS will focus only on the basic forms and eligibility documents.

In closer cases, the applicant should affirmatively document why USCIS should exercise discretion favorably.

Adjustment Cases May Start Looking More Like Waiver Cases

This is probably the biggest practical change.

Traditionally, many straightforward marriage-based adjustment cases were prepared around eligibility: the I-130, I-485, affidavit of support, medical exam, bona fide marriage evidence, and admissibility documents.

Going forward, some cases may need a separate discretionary presentation.

That does not mean every case requires a massive legal brief. But it does mean lawyers and applicants should be thinking earlier about equities.

For example, if the applicant overstayed a visa, the filing should not simply ignore that fact. The better approach may be to explain the circumstances, show the family and humanitarian equities, and document why approval is still warranted.

If there was unauthorized employment, the record should distinguish survival-based work from intentional disregard of the law, and should highlight tax compliance where possible.

If USCIS may question why the applicant did not consular process, the applicant should be ready to explain why Adjustment of Status was legally available and practically appropriate.

That explanation may include family unity, childcare, medical issues, financial hardship, unlawful presence bars, safety concerns, employment disruption, or other case-specific facts.

Preconceived Intent Is Not the Same as Fraud

One of the most important distinctions is the difference between preconceived intent and fraud.

Fraud involves a false statement or material misrepresentation.

Preconceived intent generally refers to a person entering the United States with a temporary visa while already having some intent to remain permanently.

Those are not always the same thing.

This distinction matters because family-based Adjustment of Status has long recognized that people’s lives change after entry. People meet spouses. Families form. Medical issues arise. Conditions abroad change. Plans change.

That does not automatically mean the person committed fraud.

The concern with the new policy is that USCIS may begin treating ordinary post-entry adjustment fact patterns as evidence that the applicant was trying to circumvent the consular process.

That is where strong factual development becomes important.

Applicants should be prepared to explain the real timeline: why they entered, what they intended at the time, what changed, when the relationship developed, when the decision to remain was made, and why Adjustment of Status became the chosen legal path.

What Applicants Should Gather Now

For pending and future Adjustment of Status cases, applicants should consider gathering evidence that supports a favorable exercise of discretion.

That may include:

• tax transcripts;
• proof of employment;
• proof of lawful work authorization, if applicable;
• school records;
• medical records where hardship is relevant;
• evidence of children’s schooling and care;
• proof of shared residence and family stability;
• letters from family, employers, clergy, teachers, or community members;
• proof of volunteer work;
• proof of rehabilitation, counseling, or compliance if there is any negative history;
• certified court dispositions for any arrests;
• and a clear written explanation of the applicant’s immigration history.

The goal is not to overwhelm USCIS with paper.

The goal is to give the officer a reasoned record showing that the positive factors outweigh the negative ones.

The Hard Truth

The unfortunate truth is that some cases are now riskier than they were before.

A clean immediate-relative case with no fraud, no criminal history, strong family ties, and a simple overstay may still be approvable. However, I would not treat even that case casually under the new policy.

Cases involving nonimmigrant intent problems, long overstays, unauthorized employment, prior misrepresentations, criminal history, removal orders, or weak family equities require much more careful analysis.

The new USCIS policy does not eliminate Adjustment of Status, but it may change how these cases need to be prepared. The safest approach now is to assume that discretion matters from the beginning, not just after USCIS raises it.

Schedule a Consultation

If you have questions about Adjustment of Status, immigrant intent, overstays, unlawful presence, or whether your case should be filed inside the United States or through consular processing, contact The Law Offices of Sean D. Hummel at (954) 385-3111 or email sean@hummelaw.com.

Disclaimer

This blog post is for general informational purposes only and is not legal advice. Immigration law changes frequently, and every case is different. You should consult with an immigration attorney about your specific facts before filing any application.

About the Author

Sean D. Hummel is a Florida U.S. Immigration Lawyer based in Deerfield Beach. His practice focuses on family-based immigration, Adjustment of Status, waivers, naturalization, and removal-related immigration matters.